In October of 2009, the United States Supreme Court rejected an appeal filed by Montana High Fence operators alleging that Montana citizens violated their property rights when they voted to outlaw Canned Shoot operations. The Montana operators fought the ban for 9 years filing suit in every court available to them. The Supreme Court rejection exhausts all legal avenues available to the High Fence operators. They lost. The issue is settled. The courts have spoken. Canned Shoot operators do not have a Constitutional right to fence deer and elk inside an escape proof pasture and offer them up as targets to well-heeled clients.

Below is a brief outline of how the High Fence operators framed their argument, and excerpts from decisions the various courts handed down as a result of that fight. This bears repeating: The Montana operators lost in the state trial court, they lost in the Montana Supreme Court, they lost in the US District Court, they lost in the Ninth United States Circuit Court of Appeals, and they lost in the United Sates Supreme Court. Any North Dakota Canned Shoot operator that argues a property right to pen deer and elk inside an escape proof fence and offer canned shoots, is living in a fantasy world. The courts have ruled. There is no such right.

(The text below was written before the US Supreme Court decision to reject the Montana Fenced Operators' appeal ending the Montana legal fight with a big win for Fair Chase hunting.)

The Shooting Gallery operators argue that fencing deer and elk inside an escape proof fence and selling a guaranteed shot at an animal bred for antler size is a constitutional right. The Shooting Gallery operators' claim is an illusion. No law or court decisions backs their property rights claim. The high fence operators can't cited a single law or court opinion that backs the property right they claim. The state of North Dakota does authorize what the shooting gallery operators do inside their fences, but politicians and bureaucrats had to pull a political hat trick to allow shooting captive animals penned inside an escape proof fence. The most egregious political trick reclassified deer and elk from wild game animals to domestic livestock allowing the shooting gallery operators to argue that they shoot livestock, not game animals.

The Shooting Gallery operators loudly claim killing deer and elk inside an escape proof pasture as a "right" but can't cite a single case that supports their argument. North Dakota Hunters for Fair Chase can cite numerous court decisions that support our stand.

In 2000, Montana voters passed Initiative 143 mandating that the state shut down high fence shooting operations. The Montana high fence operators challenged the new law in state and federal court alleging that the law stripped them of their property rights. The high fence operators lost on all counts. The opinions written by state and federal judges demolished the property rights issue the Montana operators raise, phantom rights North Dakota high fence operators continually cite.

U.S. District Court Judge Sam Haddon ruled that the high fence operators had no “absolute or unfettered right to operate an alternative livestock ranch as they see fit.”

Judge Haddon wrote … that I-143, “advances legitimate non-illusory state interests in protecting Montana wildlife.” (In other words, the rights high fence operators claimed were an illusion but the state's authority to shut down canned shooting was not an allusion.)

Judge Haddon stated in his opinion that “There is no fundamental right to run your business as you see fit. A game-farm license is a privilege, not a vested right. It can be taken away or modified.”

The High Fence operators argued an unconstitutional taking of property but didn’t base their takings claim on an actual taking of their property. They still owned the elk but could no longer sell a shot at the animals they owned for a high price. The shooting gallery operators argued a reduction in value of their property when their animals lost value as trophies based on antler size. Judge Haddon ruled that the, “Plaintiffs’ premise is unsound. …they have cited no case and this Court has found no decision supporting the proposition that a constitutional taking claim may be asserted on the basis of a diminution in value, as distinct from a total loss of value, of the property. Developed law leads to the opposite conclusion. (NOTE: Lawyers for the high fence operators could not find a single court case that supported this argument.)

After Judge Haddon ruled against the high fence operators on all counts, the operators appealed to the Ninth Circuit Court of Appeals. The operators claimed a constitutional interstate commerce violation among other violations. The Ninth Circuit upheld Judge Haddon’s ruling in its entirety and added these nails to the coffin of the shooting gallery operators' argument:

"The only basis for Spoklie’s (The Lead Plaintive) assertion that Initiative 143 unduly burdens interstate commerce is his claim that fee shooting primarily attracts out-of-state residents. That a particular service or recreation appeals to out-of-staters, however, does not impose on states an obligation to permit it."

States enacting statutes affecting interstate commerce “are not required to convince the courts of the correctness of their legislative judgments.”

If the legislature “could have concluded rationally” that certain facts supporting its decision were true, courts may not question its judgment."

"Voters who supported I-143 could rationally have concluded that the proposition would promote environmentally sound resource management by encouraging sport hunting in preference to fee hunting, and that it would prevent transmission of disease from the interbreeding of game farm and wild populations. Supporters could also rationally have concluded, as advocates of I-143 urged in their pre-election arguments, that fee hunting created an "unacceptable, bankrupt image of hunting portrayed by the paid shooting of captive animals," thereby threatening the state's "strong economy based on the public pursuit and enjoyment of wild, free-ranging public wildlife." None of these rationales is clearly arbitrary or pretextual, and all implicate issues of safety, health, and welfare that are within a state's legitimate police power."

The property rights argument advanced by the Shooting Gallery operators does not stand up to scrutiny. It is a bogus argument defending an indefensible practice. Take Fair Chase out of the hunting equation by fencing the animal in an escape proof pasture and you having killing, not hunting.